November 10, 2012
“ONLINE PHYSICIAN-REVIEW SITES POSE LEGAL CHALLENGES”
Andis Robeznieks, Modern Healthcare
People who sue people may receive more undesired attention than anyone else in the world.
That is the general idea behind the “Streisand Effect,” a phenomenon that occurs when an attempt to stifle publicity creates more publicity for something that might never have received much attention in the first place. According to legend, the term was coined when singer Barbra Streisand tried to have a photo of her home—one among thousands of pictures that were part of an online display showing coastline erosion in California—deleted from that site. The ensuing publicity essentially guaranteed the image will never disappear from the Internet.
It could be unlikely that combative efforts to counter negative profiles on physician review websites will lead to a similar occurrence known as a the “Dr. McKee Effect,” but no one can predict how these things turn out.
Dr. David McKee, a neurologist from Duluth, Minn., is suing a patient’s family member for defamation after the man posted negative reviews of him online. The case was argued in September before the Minnesota Supreme Court and, while its legal precedent-setting impact might not extend beyond the state’s boundaries, attorneys for both sides say it could serve as a guide in future legal proceedings – wherever the jurisdiction may be.
The parties are awaiting a decision from Minnesota’s high court since the trial is over, but the discussion it spawned appears to be just getting started.
“You can exacerbate the situation if you respond too combatively—and that can lead to more negative comments,” says Brent Franson, vice president of Reputation.com, a company that offers an online “reputation management service” that is now a benefit offered to members of the American Medical Association. Franson says privacy concerns also can arise when doctors respond online to a website’s review, and he recommends being “very polite and specific” when doing so—otherwise the Streisand Effect can get started. For example, according to the review, Dennis Laurion posted about McKee on several websites, a nurse told him “Dr. McKee is a real tool.” That phrase is now etched forever in a Minnesota Appellate Court opinion that can be found online, and a Google search of “’David McKee’ + ‘real tool’ ” will pull up more than 4,300 online references to the case.
That story began with Laurion’s father spending two days in an intensive-care unit at St. Luke’s Hospital in Duluth, Minnesota, after a hemorrhagic stroke in April 2010. According to the review Laurion posted, McKee walked into his father’s room and “seemed upset” the patient had been moved and said, “When you weren’t in ICU, I had to spend time finding out if you transferred or died.” When that remark was met with surprise, Laurion wrote that McKee said, “Well, 44% of hemorrhagic strokes die with 30 days. I guess this is the better option.”
The appellate court opinion notes how McKee reportedly dismissed the patient’s unwillingness to get out of bed and walk while wearing a hospital gown that was open in back. The appellate court decision adds that Laurion also sent letters to the hospital and various medical associations telling a story of the doctor blaming the patient for the loss of his time and treating Laurion’s father as a “task and charting assignment.”
While a district court dismissed McKee’s defamation suit, the state appellate court ruled in the doctor’s favor and remanded the case for trial. It asserts that, while opinions, true statements and vague statements are generally non-actionable, McKee had challenged 11 comments Laurion made as false statements presented as fact. The appellate court ruled that six of them were statements of fact rather than an opinion, and that it was up to a jury to decide whether they were true or false and defamatory. But rather than go before a jury, Laurion won an appeal, and the case went to the Minnesota Supreme Court.
The appellate court cited a previous decision that states how “inaccuracies of expression or detail” do not establish the falsity element in a defamation claim, for “a statement is substantially accurate if its gist or sting is true,” and it notes that Laurion’s versions of the story may carry a different “sting” than McKee’s. For example, Laurion claims McKee walked past family members who were waiting in the hallway without speaking to them. McKee didn’t dispute that, the court opinion noted, but says McKee didn’t speak to them because he didn’t see them.
McKee’s attorney, Marshall Tanick with Edina, Minn.-based Hellmuth & Johnson, says the issue is whether Laurion maliciously made false statements in his reviews with the intent of harming McKee’s reputation. “He’s not suing over statements of opinion,” Tanick explains. Laurion “says he’s entitled to his opinion—which we don’t dispute.”
Laurion’s attorney, John Kelly with Duluth-based Hanft Fride, says the appellate court tried to “split the baby” in ruling that six of the 11 statements McKee challenged were presented as facts and not opinions, and he notes that—by agreeing to hear the case – the high court might have seen it differently. “It is unkind, but not defamatory to call someone a jerk,” Kelly says. “The same argument goes for the use of the word ‘tool.’ ”
Kelly says these types of cases are new, but he hesitated to say whether this particular case would set precedent or be used in business textbooks about what not to do. “I’ll leave that for others,” Kelly says. “What you’ve got here is a situation where it has been said by McKee that this whole thing blew up because Mr. Laurion was somehow out to get him.”
What that overlooks, Kelly says, is his client, and his client’s wife, father and mother witnessed McKee’s behavior and “were all upset by what they perceived” and expressed their opinion about that. He adds that Laurion’s review was about McKee’s “brusqueness and insensitivity,” and there have been no suggestions that the doctor provided improper care.
Because there have been so few cases like this argued before a high-level court, Tanick says he thinks “it will help develop the field of law.”
A previous case involving online reviews was settled in 2009, and it involved a New York medical franchise that offered surgical and nonsurgical cosmetic procedures. The company agreed to pay $300,000 in penalties and the state’s court costs after it was discovered that employees had been directed to pose as consumers and post positive reviews. In a news release, Andrew Cuomo, then the New York attorney general and now governor, quoted a company e-mail to employees that said, “Put your wig and skirt on and tell them about the great experience you had.”
Franson recommends doctors “Google themselves” and, if they don’t like what they see, it’s not out of bounds to request patients with whom they are on good terms to post reviews that may counter negativity—but you never offer them money and you don’t specifically ask for a positive rating.
“You want to ask for ‘honest feedback’ – and you don’t want to incentivize feedback,” he says.
While growing in popularity, online physician reviews are still a relatively recent newcomer to consumers’ online product and service research database. An October report on hospital quality outcomes from one online ratings provider, Denver-based Healthgrades, was accompanied by a news release that laments “Americans spend more time researching a refrigerator than they do choosing a doctor or hospital.”
The website Yelp.com offers some confirmation of that statement. It provided statistics to Modern Healthcare indicating it had 84 million visitors searching its 33 million reviews—but only 6% of its reviewed businesses fell under the “health” category. The most-reviewed categories were “shopping,” 23%, and “restaurants,” 21%.
Healthgrades is believed to be the biggest ratings provider, and in an e-mail to Modern Healthcare provided statistics on how 200 million people annually use the company to research healthcare professionals. It now has 1 million physician profiles as well as 5 million profiles of dentists, mental-health professionals, chiropractors, nurse practitioners and physician assistants. Healthgrades receives about 45,000 electronic surveys each month, electronically validates them, and posts about 64% of those it receives.
Though doctors are perceived as being uncomfortable with the idea of online ratings, a study published earlier this year by the Journal of Medical Internet Research found that most physician reviews are positive. Researchers looked at 386,000 reviews posted between 2005 and 2010 on RateMDs.com and found one in six doctors had at least one review, and doctors had an average score of 3.9 on a 1-to-5 scale on helpfulness and knowledge ratings.
Kenneth Hertz, a principal with the MGMA Health Care Consulting Group, says physicians need to accept new realities with social media.
“You have to be doing your best all the time to provide remarkable service to people, because—if they don’t like it—it’s out there in a minute,” Hertz says, adding that he’s no exception. “I’ve had the experience with an airline where, if I’m angry and waiting in line, I’m tweeting to the world.”
Hertz advises practices that, if a patient puts out a negative tweet about sitting in the waiting room for three hours, “Tweet right back: ‘Sorry you had such a bad experience. I’d like to talk with you.’ The worst you can do is become defensive,” Hertz says. “The best thing you can do is attempt service recovery and invite further discussion—but have that discussion offline and person to person.”